This is the fourth of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to present the case for the claim that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. These posts introduce ideas that I present in greater depth in a work-in-progress:
For a very short statement of the case for originalism, see:
This post addresses the following questions:
- Is the linguistic meaning of the constitutional text fixed?
- Does living constitutionalism accept the fixation of of linguistic meaning?
The other posts in the series so far are as follows:
The post continues after the break.
- The Public Meaning Thesis: The best understanding of the nature of the original meaning of the constitutional text is "public meaning"--the meaning that the constitutional text had to "We the People" at the time each provisions of the Constitution was framed and ratified.
- The Constraint Principle: The original meaning of the constitutional text should constraint constitutional practice; judges and other officials should consider themselves bound by the original public meaning of the constitutional text.
- The Fixation Thesis: The linguistic meaning (communicative content) of the constitutional text is fixed at the time each provision is framed and ratified.
Of these three claims, the Fixation Thesis is the least controversial. My sense is that most constitutional theorists accept the Fixation Thesis, but this acceptance is not universal. There is some resistance to the Fixation Thesis on the ground that communicative content is never fixed; the resistance usually finds support in some general view about the nature of language--for example, Wittgenstein's purported view that meaning is use and Gadamer's hermeneutics. This post will not do a deep dive into theory. Instead, the common sense case for the Fixation Thesis will be presented. If you are interested in a more thorough presentation of the argument for the Fixation Thesis, you will find it here:
Is the linguistic meaning of the constitutional text fixed?
The Fixation Thesis should not be controversial. The best way to understand the idea that the communicative content of a text is fixed at the time it is written is to think about ordinary cases--the way we interpreted texts in contexts that are not ideologically charged. Let us consider a more general version of the Fixation Thesis in order to investigate the role of fixation outside the context of law.
The generalized version of the Fixation Thesis might be stated as follows:
Generalized Fixation Thesis: The communicative content of a communication (oral or written, verbal or nonverbal) is fixed at the time the communication occurs.
This idea can undoubtedly be formulated in a variety of other ways, but the Generalized Fixation Thesis expresses our commonsense understanding of how meaning works. When I give a lecture, the communicative content of my lecture comes into being then—and not at some later time. It would be strange to think that the content of my lecture changes after the lecture ends, and even more strange to think that a lecture that I gave in 2013 would acquire a new meaning (in the communicative sense) if linguistic practices were to change gradually over the decades so that words I used then have totally difference semantic content in 2089.
One of the difficulties with thinking about the Fixation Thesis in the constitutional context is that debates about the meaning of the constitution are normatively charged. This is clear in the case of specific provisions: most readers are likely to agree that the normative stakes in debates about the meaning of the Equal Protection Clause are high. And because much is riding on the meaning of particular provisions of the constitutional text, debates about constitutional interpretation and construction, even in abstract terms, may elicit motivated reasoning. Seeing ahead to the implications of a constitutional theory for issues upon which they are committed, constitutional theorists find themselves engaging in motivated reasoning—striving to reach the theoretical conclusion that underwrites their normative preferences about the content of constitutional doctrine.
The Generalized Fixation Thesis points to more prosaic examples, where fixation is intuitively obvious and unlike to be controversial. Thus, if you are reading a thirteenth-century letter that uses the word “deer” and you learn that “deer” meant four-legged mammal at the time the letter was written, you are very likely to accept this linguistic fact as crucially important to understanding the letter. Similarly, if you were reading a book of recipes written in the eighteenth century and your learned that “kale” was the eighteenth-century word for what we now call “radishes,” you would be very unlikely to insist that the recipe actually referred to the acephala group of brassica oleracea, the green or purple leafed vegetable, which is quite unlike what we call a “radish.” Of course, you might be inspired to try the recipe with some leaves from a plant in the acephala group of brassica oleracea, but that would be an experimental deviation from the recipe and not a case of following the recipe.
Just to be clear, the Fixation Thesis claims that meaning (communicative content) itself is fixed and not our beliefs about meaning. So it might well be the case that someone would read the old recipe and believe that it referred to what we now call “kale.” And then they might learn of their mistake, and their belief about the meaning of the recipe might change. Communicative content is fixed; beliefs about communicative content can change. Similarly, the Fixation Thesis makes no claim about constraint. Thus, a modern cook might disregard the linguistic fact that the old recipe used what we know call “radishes” and substitute what we now call “kale.” This result might be delicious or awful, but it would not be the dish contemplated by the meaning (communicative content) of the recipe.
Now consider the application of the Fixation Thesis to some constitutional examples:
- "Domestic violence": The phrase "domestic violence occurs in Article IV of the Constitution. Today this phrase has acquired a special meaning. Ordinarily, when we refer to "domestic violence" we are talking about spousal abuse, child abuse, or elder abuse. But this usage was unknown to the late eighteenth century. Article IV uses the phrase "domestic violence" to refer to things like riots, rebellions, or insurrections within a State.
- "Dollar": The word "dollar" appears in the Seventh Amendment. It is natural for modern readers to assume that "dollar" refers to the modern unit of currency--federal reserve notes that are legal tender. But it is not at all clear that this was the meaning of "dollar" in 1791. The dollars that were in circulation at that point in history were Spanish dollars--a silver coin. I do not claim that I have completed all the necessary research, but it seems quite likely that the term "dollar" would have been understood as referring to this coin or other silver coins with approximately the same silver content.
- "He": The constitution uses the word "he" consistently with eighteenth-century linguistic practice as a gender neutral pronoun. The modern equivalent would be "he or she" or recently "they." Recently, there has been linguistic drift and the gender neutral usage of "he" is now much less common and the ordinary contemporary reading of the constitutional text might lead readers to conclude that certain provisions of the constitution are limited to men. The Fixation Thesis suggests that these interpretations are in error.
No one should reject the Fixation Thesis. It is a simple and obvious truth. If you are opposed to originalism, you should accept the Fixation Thesis nonetheless, because your reasons for rejecting originalism are based on your disagreement with the Constraint Principle. This point can be made clear by examining the relationship of living constitutionalism with the idea of fixation.
Does living constitutionalism accept the fixation of of linguistic meaning?
On the surface, it might appear that some living constitutionalists reject the Fixation Thesis. For example, Justice Brennan proposed a theory of "contemporary ratification." One might think that this theory implies that it is the current meaning of the words that are "ratified" by "We the People" today, and hence that this is the "true" meaning of the text.
But that reading of Brennan's contemporary ratification theory is not charitable. Brennan's theory should not be viewed as advancing a very odd view about texts changing their linguistic meaning in response to linguistic drift--the very general phenomenon that words change their meaning over time. Instead, Brennan should be viewed as rejecting the Constraint Principle--the view that the original meaning is binding.
Most forms of living constitutionalism actually accept the Fixation Thesis--although this acceptance is usually implicit rather than explicit. Some living constitutionalists do come close to explicitly accepting the Fixation Thesis when they say something along the following lines:
Originalists do not have a monopoly on original meaning. We living constitutionalists accept that original meaning is a relevant component of constitutional interpretation and construction. What we reject is that the original meaning always trumps other considerations. Our view is the historical practice, precedent, and constitutional values are also relevant, and that in some cases, judges can update the legal content of constitutional doctrine in a way that violates the Constraint Principle.
That concludes our discussion of the Fixation Thesis. The next post in this series will consider justifications for the constraint principle that are based on the idea of the rule of law.